Debate over the ‘countermajoritarian institution’

It is generally accepted that democracy essentially comprises a number of critical principles, including popular sovereignty, political equality, the separation of powers and checks and balances, majority rule, federalism, limited government, and judicial review. Yet these principles depend on one fundamental requirement: the rule of law (Benesh, Reference Benesh2006: 697). In order for the rule of law to endure and function effectively, the court system must both implement it, and adhere to it. To make sure that the rule of law remains feasible, the public needs to trust the political institution (i.e., the courts) charged with upholding it. For this reason, it is important to ascertain what drives citizens’ support for the courts.

The relationship between the courts and society has always been a key issue in the study of judicial politics. Two contending theories have been offered to explain interaction between the judiciary and other political institutions (Caldeira and Gibson, Reference Caldeira and Gibson1992; Hoekstra, Reference Hoekstra2000; Hoekstra and Segal, Reference Hoekstra and Segal1996; Johnson and Martin, Reference Johnson and Martin1998; Wu, Reference Wu2008). The most frequently cited authority is Dahl (Reference Dahl1957: 281–3) who provides two competing viewpoints: the criterion of Right or Justice (the ‘traditional view’) and the majority criterion (the ‘realist view’).

The criterion of Right or Justice frames the court system as a ‘countermajoritarian institution’. The position of the courts in the political system is, in essence, different from that of the legislature and the executive. The legislature and the executive symbolize the ideals of majoritarian rule, as their members and leaders are directly elected by the people. The court system, in contrast, is the last line of defense against social injustice (Bickel, Reference Bickel1962; Casper, Reference Casper1976; Funston, Reference Funston1975; Mishler and Sheehan, Reference Mishler and Sheehan1993), tasked with protecting the rights of minorities and individuals while curbing any tendency toward tyranny of the majority.

With regard to the courts’ role in protecting minorities, Wasserman (Reference Wasserman1997: 197) underlines that the legitimacy of the judiciary is not based on its popularity with the public. The judiciary is not elected and does not directly answer to the citizens. Instead, its responsibility is to the constitution; it guarantees civil rights and civil liberties and guards against abuses of power by the government. The judiciary protects the rights of the people by opposing sociopolitical majorities. For the courts to function in the political system, and for their decisions to be implemented, they must obtain the cooperation of other institutions of the government. In brief, the judiciary has its own legitimacy that must be independent and beyond the control of political power. Not only does it not need popular support, it actually needs to oppose the majority in order to restrain other institutions.

Advocates of the majority criterion, in contrast, believe that the judiciary, as a component of the political system, must function in accordance with changes in the social environment and people's expectations. More specifically, they hold that in a democracy based primarily on majority rule, when the judiciary persistently opposes the majority and can only obtain the support of minority groups, its legitimacy will ultimately face serious challenges. Accordingly, it is necessary for the judiciary to take up mainstream values in order to preserve itself. According to Dahl (Reference Dahl1957: 283), ‘the view of the Court as a protector of the liberties of minorities against the tyranny of majorities is beset with other difficulties that are not so much ideological as matters of fact and logic’.

Focusing on the United States, Dahl identifies the ‘lawmaking majority’, or the majority in the House of Representatives and the Senate, as well as the White House, as the standard measure for the ‘national majority’. Underlining the consistency between the courts and the lawmaking majority, Dahl refers to the Supreme Court of the United States as a ‘national policymaker’. The majority criterion view regards the judiciary as not only a legal decision maker, but also a political one. After all, the judicial system cannot exist outside the social mainstream, so it must avoid conflicts with electoral coalitions and respect the sociopolitical majority in order to obtain lasting popular confidence.

In comparing the two contending theories, some legal and political scholars examine the constitutional history of the United States and hold that the majoritarian criterion is more in tune with political realities on the ground (Barnum, Reference Barnum1985; Casper, Reference Casper1976; Page and Shapiro, Reference Page and Shapiro1983; Marshall, Reference Marshall1989). According to this theory, interaction between the courts and public opinion is highly significant and close, and it has become a key issue among judicial specialists (Gibson et al., Reference Gibson, Caldeira and Spence2003; Hausegger and Riddell, Reference Hausegger and Riddell2004; Hetherington and Smith, Reference Hetherington and Smith2007; Meng and Lu, Reference Meng and Lu2015; Nicholson and Howard, Reference Nicholson and Howard2003; Price and Romanta, Reference Price and Romanta2004; Swanson, Reference Swanson2007). Although the empirical findings of these scholars seem to run contrary to the traditional view concerning the institutional legitimacy of the court system, it may yet be possible to reconcile these two positions.

It can be argued that the traditional view adopts a more normative perspective which emphasizes that the actions of the judiciary are aimed at defending the rights of some minority or other against a tyrannical majority, while those who adopt the realist view are concerned with evaluating the influence of the public on court decisions. Of course, political institutions require a certain amount of political support to persist and flourish. For the judiciary, this support is especially important, for, as noted by Benesh (Reference Benesh2006) and Caldeira and Gibson (Reference Caldeira and Gibson1992), the courts are vulnerable institutions and as such they need to inspire popular confidence if they are to persist and function adequately.

Preliminary analysis

The purpose of this study is to assess Dahl's majoritarian criterion, and to examine the extent of popular confidence in the courts and other judicial institutions using Cann and Yates’ (Reference Cann and Yates2008) categories of public support: ‘judges are trustworthy and honest’, ‘judges are fair’, ‘courts provide equal justice’, and ‘decisions are based on facts and law’. The first research hypothesis states that, compared with other political institutions, the courts inspire a relatively high degree of popular confidence. The second hypothesis states that being a supporter or an opponent of the ruling coalition influences one's level of political support for the judicial system, and therefore that the variable of party identification is closely correlated with the sense of diffuse support for the courts.

To offer a systematic assessment of popular confidence, the survey recorded respondents’ trust evaluations of five political institutions: the courts, the civil service, the Legislative Yuan, political parties, and the press. This institution typology is one that is generally used in comparative studies (Diamond et al., Reference Diamond, Plattner and Chu2013; Diamond and Shin, Reference Diamond and Shin2014). As shown in Table 1, the trust index of the courts is relatively high, similar to that in some developed and developing countries.Footnote ³ The figures reveal that approximately 50% of respondents hold positive attitudes (including ‘a great deal’ of trust and ‘some’ trust), meaning that the courts are trusted slightly less than the civil service (about 60% positive), but far more than the press (roughly 41%), the legislature (about 28%), and the political parties (18.5%).

Table 1.

Popular confidence in political institutions

The dependent variable, court legitimacy, is typically conceptualized as an indicator of the quality of public officials, the efficiency of governance, and the correctness of its decisions. As stated previously, various ways of systematically measuring political support may be found in previous research (cf. Gibson et al., Reference Gibson, Caldeira and Spence2003; Hetherington and Smith, Reference Hetherington and Smith2007). In this study, four items are employed as indicators of ‘public support’. Before going further, it is necessary to estimate the reliability of these items. The correlations of Cronbach's alpha between the four items indicate that there is a tendency for measurements of court legitimacy to be consistent and reliable, as presented in Table 2. Although the coefficients for the indexes ‘judges are fair’ and ‘decisions based on facts and law’ (0.525) and the indexes ‘judges are trustworthy and honest’ and ‘judges are fair’ (0.456) are much higher than those for the indexes ‘judges are fair’ and ‘courts provide equal justice’ (0.411), the others are approximately 0.350. The results show that, at the very least, we have made an encouraging initial step toward a persuasive measurement of popular support for the courts.

Table 2.

Correlation coefficient (Cronbach's alpha) matrix between indexes for measuring court legitimacy

Notes: Cronbach's Alpha = 0.712; ***p < 0.001; one-tailed test of significance.

Descriptive statistics for the four indicators are displayed in Table 3. The scales show that the statement ‘decisions based on facts and law’ is the one that attracts the most disagreement (68.77%), closely followed by ‘courts provide equal justice’ (65.25%). The statements that attract the most support are ‘judges are fair’ (47.43%) and ‘judges are trustworthy and honest’ (41.45%). Cross-tabulation analyses involve the division of the respondents into subgroups according to party identification, as shown in Table 4.Footnote ⁴ A chi-square test reveals significant differences between pan-Blue supporters, independents, and pan-Green supporters in the distribution of the degree of legitimacy they accord the courts.

Table 3.

Items in court legitimacy scale

Table 4.

Court legitimacy scale by party identification

Notes: ***p < .001; one-tailed test of significance.

Viewed from Dahl's perspective, the study regards pan-Blue supporters as the winners and pan-Green supporters as the losers. The results to some extent support this hypothesis: support for the judiciary among pan-Blue supporters is consistently high, and this group is the most likely to agree strongly with the statement ‘judges are fair’. On the flip side, the degree of legitimacy accorded to the courts by pan-Green supporters is relatively low. They generally hold an unfavorable attitude toward the courts, especially regarding the indexes ‘decisions based on facts and law’ and ‘courts provide equal justice’.

The above analysis confirms the research hypothesis, at least initially. Supporters of the policymaking majority (i.e., pan-Blue supporters) generally show favorable attitudes toward the judiciary, whilst supporters of the losing electoral coalition (i.e., pan-Green supporters) tend to express lower levels of support for the courts. The data yield some interesting findings, but cross-tabulation analyses – although illuminating – are not an effective technique for examining a number of variables simultaneously. These relationships may be spurious when other control variables are considered. The relative impacts of different variables on the dependent variables may be better determined through multivariate analyses.